Citation Nr: 1525561
Decision Date: 06/15/15 Archive Date: 06/26/15
DOCKET NO. 07-17 373A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUE
Entitlement to service connection for a sleep disorder, to include narcolepsy and sleep apnea.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
T. Berryman, Associate Counsel
INTRODUCTION
The Veteran had active military service from November 1979 to November 1983.
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.
In August 2010, July 2012, February 2014, and October 2014, the Board remanded the case to the RO for additional development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999).
FINDING OF FACT
A sleep disorder was not shown in service; and the weight of the probative evidence is against a finding a sleep disorder was otherwise caused by the Veteran's active service.
CONCLUSION OF LAW
Criteria for service connection for a sleep disorder have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted.
As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), private treatment records, and VA treatment records have all been obtained.
The Veteran was also provided VA examinations (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded his opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
In a January 2014 brief, the Veteran's representative objected to the qualifications of the examiner that conducted the examinations as he was a physician assistant and not a physician. Therefore, the Board must address the issue. Rizzo v. Shinseki, 580 F.3d 1288, 1291-92 (Fed.Cir. 2008).
The Veteran contends that the examiner must be a physician that specializes in sleep disorders. See September 2014 Correspondence from Veteran. The Veteran argues that the examiner was only a physician assistant, and added that the Board had been clear that the examiner be a physician.
The Veteran's argument that she is entitled to an examination by a licensed physician with a particular specialty is without basis. The regulations specifically provide that "[c]ompetent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." 38 C.F.R. § 3.159(a)(1). The United States Court of Appeals for Veterans Claims (CAVC) has explicitly rejected the argument that this regulation should be interpreted to require VA to obtain an opinion from a physician rather than a nurse practitioner. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) ("We hold that VA may satisfy its duty to assist by providing a medical examination conducted by one able to provide 'competent medical evidence' under § 3.159(a)(1)...here, a nurse practitioner."). As a licensed physician's assistant, the VA examiner was presumably qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Cox, 20 Vet. App. at 569. Even if the Board were to accept the Veteran's suggestion that a licensed physician that specialized in sleep disorders would have been more ideally suited to provide an opinion in this case, VA is not required to obtain an opinion from the most qualified, ideally educated examiner available. Id.
The Board finds that the VA examiner is qualified, as no evidence has been submitted to undermine his actual qualifications.
With regard to the contention that the Board had suggested that a physician conduct the examination, the Board acknowledges that a Board remand confers upon the Veteran the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, only substantial compliance, rather than strict compliance, is required. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Here, the Board finds that a particular specialist was not ordered to provide the opinion, and as noted the fact that a physician's assistant provided the opinion is considered in this case to be at least substantial compliance, as there has been no showing that the examiner lacked the requisite medical training to provide the opinion.
Therefore, VA examination reports are found to be adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131, 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
The Veteran asserts that she has a sleep disorder as the result of her active military service. She reported that she is unable to stay awake and sleeps most of the time. The Veteran filed her claim seeking service connection for a sleep disorder in October 2005. Her claim was denied by the RO in February 2006 and May 2006. The denials were appealed to the Board, and the Board has remanded the claims multiple times for additional development.
The Veteran's contentions have been closely reviewed. STRs show that in June 1980, she reported being extremely tired, noting that she slept during her duty time. In October 1981, she reported having difficulty falling asleep and staying asleep. After she was provided medications, her sleep pattern was noted to have improved. In October 1982, she was bitten by a rattlesnake and was very drowsy. In August 1983, she was hospitalized after taking too many prescription medications. In November 1983, she indicated she had frequent trouble sleeping. While the Veteran had sleep symptoms during her active service, she was never diagnosed with any type of sleep disorder.
After her separation from service, the record shows that her first sleep complaints were in July 1987, almost four years after her separation from service. She reported increased sleep beginning in September 1986, still well after her separation from service. However, years later in 1994, despite any sleep symptoms, she was able to return to school and operate her own business. In fact, she filed a claim for VA benefits in November 1994 and did not list any sleep disorder as part of her claim. In September 1995, she declined having any significant medical problems.
In October 1995, she underwent a sleep study for sleep apnea, which was negative. In addition, on a health history form completed in October 1995, she denied having any difficulty sleeping.
In July 1999, the Veteran reported that the medications she took for her in-service snake bite caused extreme drowsiness and fell asleep at work.
At a November 2000 VA psychiatric examination, she reported that after she was started on mental health medications she was unable to wake up. In addition, in January 2001, a private physician noted that the Veteran slept too much due to her depression.
From 2001 through 2004, the Veteran's medical records show that she fluctuated from excessive sleeping to not sleeping much. However, in 2005, she started reporting that she slept all the time and felt that she had narcolepsy. In November 2005, she underwent a sleep study that showed she probably had narcolepsy. Just after in December 2005, the Veteran reported that she gets depressed and "just sleeps all the time." In August 2006, the Veteran's husband reported that she sleeps all the time.
In June 2014, the Veteran underwent a sleep study and was diagnosed with mild to moderate sleep apnea.
Thus, the Veteran's medical records do not show any sleep complaints for almost four years after her separation from service. In addition, she had periods of extreme sleepiness and insomnia. The Veteran herself reported that her medications resulted in drowsiness in July 1999 and November 2000. In addition, she was not diagnosed with a sleep disorder until November 2005. While she was diagnosed with sleep apnea in 2014, she had a negative sleep apnea test in 1995, which would effectively sever any continuity for sleep apnea from the Veteran's time in service.
Nevertheless, given her complaints of sleep problems in service, the Veteran was afforded a VA examination in March 2012. Following review of the claims file, including private medical records, an interview of the Veteran, and physical examination, the examiner opined that the Veteran's sleep disorder was less likely than not (less than fifty percent probability) the result of the Veteran's active service. The examiner noted that there was very limited objective evidence that clearly demonstrated she had narcolepsy in service. The examiner noted that the Veteran was diagnosed with multiple mental health issues while in service. The examiner recognized that the Veteran had experienced excessive sleepiness in service, but reported that excessive sleepiness was not enough to make a diagnosis of narcolepsy. The examiner concluded that the Veteran's excessive sleepiness in service was linked to sedation or excessive medications.
In July 2014, the Veteran was afforded a second VA examination with the same examiner. Again, following review of the claims file, private medical records, an interview of the Veteran, and physical examination, the examiner opined that the Veteran's sleep disorder was less likely than not the result of the Veteran's active service. The examiner noted that his opinion was unchanged from the March 2012 VA examination. The examiner recognized that a recent sleep study showed a diagnosis of sleep apnea; however, he concluded that sleep apnea did not account for her current excessive daytime sleepiness. In addition, the examiner noted that the Veteran's recent reported symptomology was not objectively verified. The examiner also opined that there was no connection between her current diagnoses of narcolepsy and sleep apnea and her service-connected conditions. In reaching this conclusion, the examiner reviewed the relevant medical literature, including that Mayo Clinic Website.
Based upon the evidence of record, the Board finds that the Veteran's sleep disorder was not manifest during active service and is not shown to have developed as a result of service or a service connected condition. The record contains no competent evidence indicating a possible relationship between the Veteran's service and her 2005 diagnosis of narcolepsy and her 2014 diagnosis of sleep apnea. The Veteran has provided no probative evidence supporting her allegations of a sleep disorder with an onset in service.
As a lay person, the Veteran is competent to report what comes to her through her senses, such as problems sleeping, but she lacks the medical training and expertise to provide a complex medical opinion such as diagnosing a sleep disorder or determining its etiological cause. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with narcolepsy and sleep apnea. Therefore, while the Veteran disagrees with the conclusion that her sleep disorder neither began during, nor was otherwise caused by, her military service, the Veteran is not considered competent (meaning medical qualified) to address the etiology of her sleep disorder. As such, her opinion is insufficient to provide the requisite nexus.
As described, the weight of the evidence is against the claim, and service connection for a sleep disorder is therefore denied.
ORDER
Service connection for a sleep disorder, to include narcolepsy and sleep apnea, is denied.
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MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs